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Ho.  2. 


TREASUv.  'vOOM 


COL.  GFORGF  WASHINGTON  FLOW!  RS 
MIMORIAL  COLLECTION 


I>l  Kl    IMYI  KMI  V   MHRARY 
DURHAM 


PtBSi  mi; 

W,  W   lie  >\\  . 


Digitized  by  the  Internet  Archive 
in  2010  with  funding  from 
Duke  University  Libraries 


http://www.archive.org/details/decisionofsupremOOgeor 


DECISION 


OF    TTTK 


^uincme   €o«tt  of   $ 


OONSTITUTIONALITV 


ENROLLING  ACTS  OF  THE  CONGRE! 


or   THE 


CONFEDERATE  STA  I  ES  OF  AMERICA. 


I 

Slcam  rower  Preii  Chronicle  4c .-  • 


To 


SUPREME  COURT  OF  GEORGIA. 

FIFTH        DISTRICT, 

AT  MILLEDGEVILLE,   NOVEMBER   TERM,    If 


ASA  <>  JEFFERS,  Plaintiff  in  Error, 
vs. 
JOHN   FAIK,  Enrolling  Officer,  U.  S.  A 


Application  for  DiscJiarge,  ttnrli      It         -  C 

Harris,  at  Chambers  ;  Application  refu& 
'Writ         Error. 


Jadge  Jenkins  delivered  the  opinion  of  the  Court,  as  folio 
The  sole  question,  presented  by  tins  record  for  the  i 

the  Court,  is  the  constitutionality  of  two  A  1  by  the  ( 

the  Confederate  States;    the    one,    approved  April  16th,  18G2,  entitled 

"An  Act  f"  farther  provide  for  the  puMic  defence  ;"  the  other,  ap] 
iber  27,  1862,  entitled  "An  Act,  to  amend  an   Act,  entitle 

Act  to  further  provide  for  the  public  defence." 
.  those  Art-  alone,  the  defendant  in  em 

hold  the  plaintiff  in  custody  ;   whilst    the  latter,    admit; 

within  their  purview,  insists   that    (hey   are   unconstitutional,    ai 

authority  claimed  under  them  void, 
enough  to  say  of  th 

the  President  of  the  ConH  in  the 

militai 

shall  have  been  S0OU( 

Confederate 

from  military  Bervi 

I         P 


d,  and 
liavo   Dot   fail 
ition.     Tin-  inquiry  and  the  c 

1         :  it  u- 
tion 
■ 
I 

ll 
•in  than  ' 

ftho 
i  repel 

10     i  iplining  the  militia, 

f  them,  oa  may  be  employed  in  thi 

tively,  the  ar* 
and  the  authority  of  training  the  militia  accord- 
■  ' 
all   lawa   which   shrill  ary  and  proper,  for 

.  and  .-ill  other  powi 
anient  of  the  Confederate  States,  or  in 

instruction  of  the  grant  of 
i '..'ill  clause,  ab  • 
.  int  of  "power  t>>  call  J 
In  the  argun  i  q(  \ 

tiled 

lis   of  tin  nit. 

\\  Armies   raised   under  the    L2th 

i  r  to 

whether  on  our  own,  or  <>n 
ing   armies,   are  separated 
•  .    .    I  Irawn  from  the  ordinan  civil 
Hunt,   whether   in    pcucc  <t   in 
\  ibjcct  to  the  ( !o>  cm- 

no  time,  and  under  no 
authority. 

.  Drolled,  for  military 
ii    y,    i  ith    i   .  ronco  to 
red  and  disciplined  b)  Si 

,  (for   the  sake  of 
iinifbrmil  inization  and   discipline. 


They  are  not  separated  from  the  mass  of  their  fellow-citizens,  nor  with- 
drawn from  their  ordinary  pursuits,  save  occasionally  for  drill,  or  fbr 
special,  and  usually  short  service,  in  the  Geld. 

For  such  special  service  they  may  be  'called  forth,  either  by  the 
authority  of  the  State  wherein  they  are  enrolled,  or  by  that  of  the  Con* 
federate  States  ;  but  the  power  of  the  latter,  to  call  them  forth,  is  limited 
to  three  specified  emergencies,  viz .  to  execute  the  laws  of  the  Confed- 
erate States — to  suppress  insurrections — to  repel  invasions.  It  is  appa- 
rent, then,  that  they  cannot  be  used  in  offensive  war,  on  foreign 

Armies  raised  under  the  12th  clause,  constitute  the  physical  force,  in 
conjunction  with  the  Navy,  mainly  relied  upon,  for  national  defence,  and 
exclusively    for    offensive,    extra-territorial     war,    in     tl  .on    of 

national  rights.  The  militia  are,  when  called  forth,  citizen  soldiery — 
ed  to  bo  used  in  the  specified  emergencies,  at  points  where  there 
may  he  no  portion,  or  an  inadequate  portion  of  a  regular  army.  They 
arc  not  intended,  at  any  time,  to  lie  merged  in  any  army  of  the  Con- 
federate States,  nor  to  be  substituted  for  it  ;  hut  as  a  separate  organiza- 
tion, to  come  in  aid  of  it.  Doubtless,  the  Constitutional  provisions  rela- 
tive to  the  militia,  were  adopted  in  furtherance  of  the  American  | 
of  maintaining  small  standing  armies  in  peace.  But  the  grants  of 
power  "to  raise  armies,"  and  "to  call  forth  the  militia,""  arc  entirely 
separate  and  distinct — are  not  to  he  construed   together,  i\<r  the  i 

tricting,  or  enlarging  cither,      \n  I  lead  to  the 

most  embarrassing  confusion,  the    necessity  of  avoiding  which  1 

'it,  in  the  course  of  the  argument  submitted,  and 
imperatively  for  this  preliminary  distinction. 
It  is  •  that  the  Confederate  Congress  ha 

ndent,  for  military  forces,  upon 
luntary  enlistment  of  men  ;  and  if  it  need  mm  an  its 

d,  and  its  Navy,  its  only  resource  is  t<>  call  forth  the 
militia  of  the  Si 

It  is  clear,  under  the  view  we  have  taken,  that  t' 

the  12th  clai  ■luntary  enlistment, 

.  enrollment,  and  we  are  oo\t 
limit  them  to  the  firmer  mode.     The  limitati 
means  only  ;  whether  or  not  t',  I  mifa- 

:  the  power,  we  will 
under  review,  authorize,  c  enrollment  ..f  citis 

clause  of  '  n,   in   virtue   of  which  the  power  thus 

claimed,  ia   very  general  in   [I     I  fyiug 


P419 


nor  prohibiting  any  means.  Let  the  phraseology  be  fixed  in  the  mind 
of  (lie  inquirer.  "The  Congress  shall  have  poxcer  to  raise  armies" 
A.v.  Language  could  not  express  a  broader,  more  general  grant  of  a 
specific  power.  We  look  in  vain  for  the  limitation  to  voluntary  enlist- 
ment as  a  means.  Is  there  any  difference  between  a  grant  of  "power 
to  raise  armies,"  without  superadded  words  of  limitation,  and  a  grant 
oft  "unlimited power  to  raise  armies"  1  We  think  not.  Yet,  had 
the  latter/orm  of  expression  been  used,  who  would  have  affirmed  the 
existence  of  the  limitation  now  insisted  on  ?  We  understand  the  rule 
of  construction,  in  such  cases,  to  be,  that  "an  unqualified  grant  of  power 
gives  the"means  necessary  to  carry  it  into  effect."  But  the  proposed 
limitation  reduces  the  grant  to  a  "bare  authority,  to  raise  armies  by 
ling  volunteers."  Now,  this  idea,  and  the  idea  of  "a  power  to 
raise  armies,"  are  widely  different  :  and  not  less  so  arc  the  terms  appro- 
priate i<>  the  expression  of  the  one,  and  the  other  Presuming  that  the 
framers  of  the  Constitution  used  the  words  employed,  in  their  ordinary 
unambiguous  significance,  we  hold  that  the  clause,  ex  vi  termini,  ex- 
presses a  graut  of  Power — of  power  commensurate  with  the  object — of 
power  over  the  populations  of  the  several  States,  entering  into  and 
becoming  component  parts  of  the  Confederate  States  of  America. 

Undoubtedly,  voluntary  enlistment,  as  a  means,  would  always  be 
preferred,  when  efficacious,  to  compulsory  enrollment,  but  in  many  cases, 
a  limitation  to  the  former,  would  render  the  power  barren.  So  obvious 
is  (he  necessity  of  compulsion  to  render  the  grant  effective,  that  those 
holding  the  position  we  combat,  admit  that  it  may  be  resorted  to,  but 
only  through  the  agency  of  the  several  States.  The  admission  places 
compulsory  enrollment  in  the  relation  of  incident,  to  the  power  to  raise 
ai mies.  But  their  view  imputes  to  the  framers  of  the  Constitution  this 
absurdity,  viz  :  that  having  divested  the  States  of  the  powers  to  declare 
war.  and  to  raise  armies ;  and  having  vested  those  powers  in  the  Con- 
federate Congress ;  and  knowing  that  the  latter  power  would  be  incom- 
plete without  compulsory  enrollment ;  they,  nevertheless,  left  it  exclu- 
sively in  the  hands  of  the  States.  Let  us  resolve  this  logic  into  the  form 
of  a  syllogism. 

Compulsory  enrollment  is  a  proper  incident  of  tho  power  to  raise 
armies ;  the  Confederate  Congress  have,  and  the  States  severally  have 
not  the  power  to  raise  armies;  ergo,  the  Congress  may  not,  but  the 
several  States  may,  resort  to  compulsory  enrollment. 

Again,  if  the  grant  contained  in  the  12th  clause  (wh^ch  we  have  thus 
Dsidered,  per  sr,)  fall  short  of  authorising  the  Congress  to  resort  to 


compulsory  enrollment,  in  execution  of  the  power,  surely  the  defect  is 
supplied  hy  the  18th  and  last  clause,  which  applies  equally  to  all  the 
preceding  clauses  of  the  section.  It  confers  "power  to  make  all  laws 
which  shall  he  necessary  and  proper  for  carrying  into  effect  the  foregoing 
powers,"  Arc.  How  docs  this  comport  with  the  idea,  that  should  compul- 
sion become  necessary,  in  the  process  of  raising  armies,  the  Congress 
must  appeal  to  the  States  to  use  it  ? 

"We  have  held  that  the  power  to  raise  armicsjs  separate  and  distinct 
from  the  power  to  call  forth  the  militia,  and  that  the  only  moans  to 
which  Congress  can  resort  in  execution  of  the  former,  are  voluntary  en- 
listment and  compulsory  enrollment.  Conceding  then,  for  the  argu- 
ment, that  the  latter  is  not  authorised  by  the  12th  clause,  we  are  con- 
strained to  hold,  that  it  is  authorised  by  the  18th  clause,  whenever 
voluntary  enlistment  shall  fail,  or  shall  cease  to  promise  necessary 
results.  We  by  no  means  concede,  that  in  a  time  of  flagrant  war,  the 
Congress  would  be  constrained  to  wait  until  that  resource  had  been 
wholly  exhausted  of  success  before  resorting  to  the  other  means. 

Under  such  circumstances,  promptness  is  an  indispensable  element,  in 
raising  armies.  Delay  would  often  amount  to  failure.  That  scheme 
which  promises  the  greatest  attainable  promptness  and  efficiency,  is  both 
ary  and  proper.  Of  these,  the  Congress  must  1"'  the  J  judges, 
because  in  them  is  vested  the  power,  and  upon  them  rests"  the  'responsi- 
bility  of  declaring  war,  and  raising  armies  to  prosecute  it. 

Those  who  would  thus  limit  the  power  of  Congress,  seem  to  forget, 
that  voluntary  enlistment  is  not  mentioned  as  a  means  iu  the  Constitu- 
tion. Upon  what,  then,  rests  their  limitation  ?  Clearly  on  their  own 
notions  of  fitness  and  propriety.  And  upon  these  points  how  variant  are 
men's  ideas !  They  are  referable  to  no  criterion,  measurable  by  no 
standard.  Something  more  weighty  than  vague  abstractions,  must  !»■ 
invoked  to  induce  us  to  fetter  the  Government,  in  the  exercise  el'  a  power, 
upon  the  vigor  of  which  depends  our  national  exist 

lint  it  is  further  argued  that  the  proceeding  by  which  the  plaintiff  in 
error  is  held  in  custody,  under  whatsoever  clause   of  the   Constitution 
attempted  to  be  justified,  is  virtually  a  calling  forth  of  the  militi 
violates  the  Constitution,  in  that,  it  takes  from  the  Stat<  -  the  y  m  r  of 
appointing  officers  of  the  militi  I  forth.     This  argu 

upon  the/act  thai  the  men  now  being  enrolled  tor  .'i\i,,  ni  the  army, 
have  been  previously  enrolled  by  to 

The  simple  and  obvious  reply  is,  that  the  status  of  the  citizen 
merged  in  the  militia-man — thl  of  enrollment  with  the  militia, 


8 

does  not  exempt  him  from  other  duties,  and  liabilities  of  citizenship.  If 
it  were  so,  and  if  the  militia  be  so  sacred  a  body  that  the  Confederate 
Government  cannot  touch  the  individuals  composing  it,  then  would  it  be 
improper  for  that  Government  to  seduce  them  from  it,  by  the  offer  of 
bounties,  and  wages  as  an  inducement  to  voluntary  enlistment  The 
consequence  would  be,  that  in  times  like  the  present,  when  our  access 
in  foreign  populations  is  cut  off,  the  Government  charged  with  the  con- 
ducl  of  the  war  would  find  it  impossible  to  raise  armies  ;  and  the  clause 
of  the  < '(institution  conferring  that  power,  would  be  a  dead  letter,  when 
most  necessary  to  "the  general  welfare." 

The  points  remaining  to  be  considered,  are  resolvable  into  this — That 
the  power  claimed  is  violative  of  the  spirit  (if  not  of  the  letter)  of  the 
Constitution — incompatible  with  State  sovereignty — and  subversive  of 
the  State  Governments.  Having,  as  we  think,  established  the  existence 
of  an  express  grant  of  the  power  claimed,  we  might  well  decline  entering 
into  so  wide"  a  field  of  inquiry  as  that  thus  opened.  The  task  would 
seem  more  appropriate  to  a  body  clothed  with  authority  to  make,  or  to 
alter,  and  amend  the  Constitution.  Yet,  as  it  has  been  pressed  with 
great  earnestness,  and,  as  under  our  peculiar  institutions,  it  is  desirable 
not  only  that  the  National  Government  should  possess  necessary  powers 
but  that  its  possession  of  them,  should  meet  the  sanction  of  public  opinion, 
we  will  consider  this  view. 

The  objection  rests  upon  this  basis — that  throughout  the  Constitution, 
there  is  manifested  an  intention  to  transfer  from  the  States,  previously 
invested  with  all  political  powers,  to  the  Confederate  Government,  only 
such  of  them  as  are  necessary  to  the  attainment  of  the  end  for  which  it 
was  established,  leaving  the  residuum  unimpaired  with  the  States.  The 
intention,  and  its  rectitude,  we  fully  recognize.  "We  accept  it,  as  a 
governing  principle,  with  the  Convention  that  framed,  and  the  several 
sovereign  peoples  that  adopted  it.  For  the  ascertainment  of  their  in- 
tention regarding  the  power  in  question  ("to  raise  armies")  we  propose 
a  candid  application  to  the  end  in  view,  of  this  cardinal  principle,  in  the 
circumstances  surrounding  them. 

It  is  eminently  proper  to  state,  first  the  end  proposed  to  be  accom- 
plished by  the  adoption  of  the  Constitution.  A  careful  perusal  of  the 
instrument  cannot  fail  to  impress  upon  the  mind  of  the  inquirer  the 
significant  fact,  that  in  the  distribution  of  powers  between  the  State  and 
Confederate  Governments,  the  regulation  of  internal  affairs  is  left  with 
the  former,  whilst  the  external  relations  of  all  are  committed  to  the 
latter.     From  this  we  deduce,  two  inferences — First,  that  the  former 


9 

were  deemed  fully  competent  to  regulate  the  civil  conduct  of  individuals, 
and  to  promote  their  domestic  prosperity  in  the  aggregate — and,  there- 
fore,   all    power    necessary    to    those    purposes    remained     with     them. 

11  v.  that  they  were  incompetent,  severally,  to  manage  successfully 
the  vast  machinery  of  international  relations;  and,  therefore,  fur  this 
purpose,  a  common  ag  constituted  for   them,    and   invested  with 

try  powers.  The  controlling  inducement,  then,  was  the  better 
and  safer  conducl  of  foreign  relations — the  great  end  aimed  a!,  the  em- 
bodiment of  such  strength  as  would  deter  encroachment,  repel  invasion, 
and  defend  right,  in  those  relations,  i  >ur  constitution,  (with  a  lew  i 
tions,  not  affecting  tlii-  investigation)  is  a  literal  copy  of  the  Constitution  of 
the  United  States,  under  which  our  States,  until  recently,  confederated  with 
others.  The  experience  which  induced  its  adoption  was  our  experience. 
Whatever  light,  therefore,  may  be  derived  from  American  history,  and 
whatever  authority  from  eminent  actors  in  the  political  arena,  between  the 
Declaration  of  Independence,  and  our  Secession  from  the  Union,  are 
legitimate  aids  in  the  further  pro-  eutionof  our  inquiry.  The  Constitu- 
tion of  the  United  States  had  been  preceded  by  articles  of  confederation 
among  the  Slate-  :  being  their  first  experiment  in  a  bond  ol  Union.  It 
had  been  tried  in  war  and  in  peace,  and  had  been  found  defective. 
Prominent  among  the  defects  thus  developed,  was  a  want  of  power  in 
the  General  Government  to  raise  revenue,  and  to  raise  armies.  Tl  i 
general  Congress  had  authority  "  to  defray  charges  of  war  and  other 
expenses,  out  of  a  common  Treasury  ;"  but  that  treasury  "was  to  be 
supplied  by  the  several  States — the  taxes  for  that  purpose  to  '  e  laid  by 
their  several  Legislatures."  Tt  had  authority  only  to  agree  upon  the 
number  of  land  forces,  and  to  make  requisition  upon  each  State  for  its 
quota."  Our  forefathers  learned  from  experience,  gathered  in  the  Revo- 
lutionary war,  that  requisitions  upon  the  States  for  their  several  quotas 
of  land  forci  ol  met  with  equal  promptness.     The  States  most 

remote  from  the  seat  of  war,  and  least  affected  by  its  ravages,  responded 
tardily,  or  not  at  all.  Similar  difficulties  and  delays  occurred  in  raising 
revenue.     Hence  resulted  two  onsequenccs — the  full  number 

of  force.-  agreed  upon  by  Congn  try  fa-  defence,  was  never 

supplied,  and  the  burthen  of  the  actual  supply  of  men  and  ne         : 
tally  upon  the  States,     [t  will  be  conceded  that  in  furnishiu 
quota  of  men,  each  State  had  the  power  of  compulsory  enrollment)  and 
in  furnishing  her  quota  of  money,  the  power  •  ■  tyment 

of  tax 

Cut  the  defect  in  the  sysl  that  the  power  of  making  war  was 


10 

:  in  the  General  Congress,  whilst  the  powers  of  raising  revenue, 
and  armies  remained  with  the  States.  The  Congress  could  neither  act 
directly  upon  individual  citizens,  ncr  compel  the  States  toxloso.  It  wag 
to  remedy  tl  ts  in  the  old  system,  that  the  framers  of  the  Federal 

('(institution  proposed  to  give  such  ample  power,   touching  armies  and 
revenue,  to  the  new  Government. 

The  first  testimony,  we  adduce,  of  the  defects  in  the  articles  of  Con- 
federation, and  the  appropriate  remedy,  shall  be  from  the  Father  of 
his  Country.  Cen.  Washington,  whose  position,  as  Commander-in- 
chief  of  the  ^Revolutionary  army,  gave  him  a  clearer  view  of  those  de- 
fects, than  any  cotemporary  could  possibly  have,  writes  thus  in  1781, 
(in  the  midst  of  that  war)  to  John  Parke  Custis,  his  friend  and  rela- 
tive, then  a  Senator  in  the  Legislature  of  Virginia. 

After  insisting  upon  the  "  necessity  of  having  a  permanent  force," 
instead  of  "temporary  enlistments,  and  a  reliance  upon  the  militia,"  he 
continues  :  •'  It  must  be  a  settled  plan,  founded  on  system,  order,  and 
economy,  that  is  to  cany  us  triumphantly  through  this  war.  Snpinc- 
ncss,  and  indifference  to  the  distresses  and  cries  of  a  sister  State,  where 
danger  is  far  off,  and  a  general,  but  momentary  resort  to  arms  when  it 
comes  to  our  doors,  are  equally  impolitic  and  dangerous,  and  prove  the 
necessity  of  a  controlling  power  in  Congress,  to  regulate  and  di- 
rect all  matters  of  general  concern.  The  great  business  of  war 
can  never  be  i cell  conducted,  if  it  can  be  conducted  at  all,  while  the 
poivcrs  of  Congress  arc  only  recommendatory.  While  one  State 
yields  obedience,  and  another  refuses  it,  while  a  third  mutilates, 
and  adopts  the  'measure  in  part  only,  and  all  vary  in  time  and 
manner,  it  seems  hardly  possible  that  our  affairs  shoidd  prosper,  or 
that  any  thing  but  disappointment  can  follow  the  best  concerted 
plans.  The  willing  States  are  almost  ruined  by  their  exertions  ;  dis- 
trust and  jealousy  ensue.  Hence  proceed  neglect,  and  ill-timed  com- 
pliances, one  State  waiting  to  sec  what  another  will  do.  This  thwarts 
all  our  measures,  after  a  heavy  though  ineffectual  expense  is  incurred. 
Do  not  these  things  show,  in  the  most  striking  poi  nt  of  view,  the  indis- 
pensable necessity,  the  great  and  good  policy,  of  each  State  sending  its 
ablest  and  best  men  to  Congress  ;  men,  who  have  a  perfect  understand- 
ing of  the  Constitution  of  their  country,  of  its  policy  and  interests  ;  and. 
of  vesting  that  body  with  competent  powers.  Our  independence,  our 
respectability,  and  consequence  in  Europe,  our  greatness  as  a  na- 
tion hereafter,  depend  upon  it:  The  fear  of  giving  sufficient  pow- 
ers to  Congrcss,for  the  purposes  I  have  mentioned,  is  futile.  *  *  * 


11 

A  nominal  head,  which,  at  present,  is  but  another  name  for  Con- 
.  will  no  longer  do.  That  honorable  body,  after  bearing  the 
interests  and  views  of  the  several  States  fairlj  discussed  and  explained, 
by  their  respective  representatives,  must  dictate,  and  not  merely 
<d,  and  leave  it  to  the  States  afterwards,  to  do  a  they  please, 
which,  as  I  have  observed  before,  is  in  many  cases  to  nothing  at  all.-' 
(7.  Sparks"  Writings  of  Washington,  442,  .">,  A.)  We  submit  whether 
any  thing  ehorl  of  the  Constitution  as  it  now  is,  and  as  we  construe  it, 
would  nieel  the  views  of  Washington,  as  here  expressed. 

Whilst  the  adoption  of  the  Constitution  by  the  people  of  the  States 
was  an  open  question,  its  opponents  insisted  that  those  provisions  were 
inimical  to  the  liberty  of  the  citizen,  and  that  they  would  render  the 
General  Government  too  strong,  and  the  State  Governments  too  feeble. 
Its  advocates  drew  their  replies  from  their  then  recent  expcriei 
peace  and  in  war.  Tn  the  State  Conventions  assembled,  to  consider  and 
itution,  and  through  the  medium  of  the  Press, 
these  conflicting  opinions  were  urged  with  unrestricted  freedom,  and 
with  the  ui  I  ability,  evinced  by  the  statesmen  of  that  (lav.     In 

those  discussions,  the  concentrated  lights  of  history  and  of  reason 

Jit  to   the  aid  of  a  pure  and  elevated  patriotism.     We  quote,  in 
t:ii-  connection,  from  the  arguments  of  distinguished   advocates  of  this 
power,  partly  because  their  opinions  arc  of  themselves  high   authority, 
but  chiefly,  because  those  opinions  having  prevailed,  we  are  justified   in 
assuming  that  their  reasoning  was  ai  cepted,  in  the  adoption  of  the  Con- 
stitution, and  in  treating  it  as  an  index  of  intention. 
In  the  Virginia  Convention,  Mr.  Madison  said: 
"  The  power  of  raising  and  supporting  armies,  is  exclaimed  against, 
:i-  dangerous  and  unnecessary.     I  wish  there  were  no  neccs.-iiy  i 
ingthis  power  in  the  General    Government.     Bui   Bupposo   a   C 

!  to  declare  war  against  (!■  must  not  the  general 

legislature  have  the  power  of  defending  the  I  Ought   it 

to  be  known  to   foreign  nations  that  the  General  Government  of  (lie 
as  no  power  t.>  i  support  an  army,  even  in   the 

when  attacked  by  external  enemies  .'  Would  no!  their 
knowledge  of  such  a  circumstance  stimulate  them  to  fall  upon  us  .'  If, 
sir,  Ce'  ted    with  this    power,    a  ul    nation, 

prompted  by  ambition  or  avarice,  will  lie    invited  by  our  •■ 
atta  :k  us;  and  such  an  attack,  by  disciplined  rtainly 

undisciplined 
rs  the  peculiar    situation  of  I  ;y,  the 


12 

multiplicity  of  its  excellent  inlets  and  harbors,  and  the  uncommon  facili- 
ty of  attacking  it,  however  much  he  may  regret  the  necessity  of  such  a 
power,  cannot  hesitate  a  moment  in  granting  it."  He  then  shows  that 
the  lack  of  the  power,  during  the  revolutionary  war,  had  driven  the 
Government  to  purchase  foreign  aid  by  a  cession  of  territory,  and  con- 
eludes:  "  This  fact  shows  the  extremities  to  which  nations  will  go  in 
cases  of  imminent  danger,  and  demonstrates  the  necessity  of  making 
ourselves  more  respectable.  The  necessity  of  making  dangerous  ces- 
sions, and  of  applying  to  foreign  aid  ought  to  be  excluded." — (3.  Elliot's 
Debates,  112.)  No  candid  mind  will  imagine,  that  Mr.  Madison  was 
here  affirming  the  necessity,  whilst  he  deprecated  it,  of  conferring  on 
the  General  Government  a  simple  authority  to  accept  volunteers  for 
national  defence,  in  a  moment  of  pressing  danger. 

Mr.  John  Marshall,"  (afterwards  Chief  Justice  U.  S.,)  in  the  progress 
of  the  same  debates,  speaking  of  the  powers  to  raise  revenue  and  to 
raise  armies,  says:  "  What  arc  the  objects  of  the  national  government  ? 
To  protect  the  United  States,  and  to  promote  the  general  welfare.  Pro- 
tection in  time  of  war,  is  one  of  its  principal  objects.  Until  mankind 
shall  cease  to  have  ambition  and  avarice,  wars  will  arise.  The  pros- 
perity and  happiness  of  the  people  depend  upon  the  performance  of 
these  great  and  important  duties  of  the  general  Government.  Can 
these  duties  be  performed  by  one  State  ?  Can  one  State  protect  us,  and 
promote  our  happiness  ?  How  then  can  these  things  be  done  ?  By 
the  national  government  only.  Shall  we  refuse  to  give  it  power  to  do 
them  ?  We  are  answered  that  the  powers  may  be  abused  ;  that  though 
the  Congress  may  promote  our  happiness,  yet  they  may  prostitute  their 
powers  to  destroy  our  liberties.  This  goes  to  the  destruction  of  all 
confidence  in  agents.  Would  you  believe  that  men  who  had  merited 
your  highest  confidence,  would  deceive  you  ?  Would  you  trust  them 
after  one  deception  ?  Why  hesitate  to  trust  the  general  Government  ? 
The  object  of  our  inquiry  is,  Is  the  power  necessary,  and  is  it  guard- 
ed ?  There  must  be  men  and  money  to  protect  us.  How  are  armies 
to  be  raised  ?  Must  we  not  have  money  for  that  purpose  ?  *  *  It 
is  then  necessary  to  give  the  government  that  power  in  time  of  peace 
which  the  necessity  of  war  will  render  indispensable,  or  else  we  shall  be 
attacked  unprepared.  *  *  *  The  propriety  of  giving  this  power 
will  be  proved  by  the  history  of  the  world,  and  particularly  of  modern 
republics.  I  defy  you  to  produce  a  single  instance  where  requisitions 
on  several  individual  States,  composing  a  confederacy,  have  been  hon- 
estly complied  with.     Did  gentlemen   expect  to  see  such    punctuality 


13 

complied  with  in  America?     If  the//  did,  ou  shows 

the  contrary.  We  are  told,  that  the  confederation  carried  us  through 
the  war.  Had  not  the  enthusiasm  of  liberty  inspired  us  with  unanimity, 
that  system  would  never  have  carried  us  through  it.  [l  would  have 
been  much  sooner  terminated,  had  the  government  been  possessed  oi 
due  energy.  The  inability  of  Congress,  and  the  failure  of  States  tu 
comply  with  the  constitutional  requisitions,  r<  ndered  our  resistant 
efficient  than  it  uiighl  have  been.  *  *  If  requisitions  will  not  avail, 
fvernment  must  have  the  sinews  of  war  some  other  way.  Requisi- 
tions canm  tual.  They  will  be  producti'  ty,  and  will 
ultimately  be  ineffectual. " — (3.  Elliot's  D 

Again,    speaking  of  the  dan  reign  aggressions  '  lie  said  he 

would  give  the  general  Governnv  nl  all  necessary  powers.  If  any  thing 
he  necessary,  it  must  be  so  to  call  forth  the  strength  oi' the  ("iiion,  when 
we  may  be  attacked,  or  when  the  general  purposes  of  America  may 
require  it.'' — (3.  Elliot's  Dcba 

In  the  New  York  Convention,  Mr.  Hamilton,  (who  was  also  a  mem- 
ber of  the  Federal  Convention,)  said :    "Wo  contend  that  the  radical 
vice  in  the  old  confederation,  is  that  the  laws  of  the  Union  apply  • 
Stat.  -  in  their  corporate  capacity,     tlas  not  every  man  who  has  b 
our  legislature,  experienced  the  truth  of  this  position  .'     1(  is  inseparable 
from  the  disposition  of  bodies,  who  have  a  constitutional  [    wcr  of 
ance,  to  examine  the  merits  of  a  law      In  this  examination,   not 
furnished  with  those  lights  which   directed  the  deliberations 
oral  Government,  and  incapable  of  ciubn  _  meral  interests  of  the 

Union,  the  States  have  almost  uniformly  weighed  the  requisitions  by 
their  own  local  interest,  and.  have  only  executed  them,  so  far  as  answered 
their  particular  conveuicncc  and  advantage.     Hence  there 

thirteen  diffcrci  > judge  of  the  measures  oi  '  i — and 

the  operations  of  governmcnl  have  I  liffcr- 

irscs.     Th  i  were  to  !  mplicd  with  the 

requisitions;  others  have  totally  dis  Have  not  all  of  us 

becnw  •  the  unhappy  emba  ulted  from  these 

Then  aftc  that  two    ; 

"had   perfectly  discharged  their    fed  ral    dutj    —I  "had 

itally  delinquent,"  and  .  partial!  5 

"What.  si',  is  the  cure  lor  I 
<  liable  the  nati 
manner  as  thou 
the  subject,  ;ir.     The  gentlemen  appear  to  i 


14 

While  they  yield  to  the  principle,  they  seem  to  fear  its  application  to  the 
government."  (2.  Elliot's  Debates,  231-3.)  Those  who  will  take  the 
trouble  to  read  this  speech  will  perceive,  the  speaker  did  not  refer  ex- 
clusively to  requisitions  either  for  men  or  for  money  ;  but  to  the  whole 
subject  of  requisitions,  upon  which  the  Congress  of  the  Confederation 
were  dependent,  for  both  His  reasoning  is  alike  applicable  to  each, 
[ndeed,  it  must  be  so  in  the  nature  of  things.  The  sain.'  motives  which 
would  induce  neglect  of,  or  compliance  with,  one  descrition  »>f  requisi- 
tion, would  lead  to  a  like  result  regarding  the  other. 

In  the  Connecticut  convention,  Mr.  Elsworth,  having  enforced  by 
historical  examples  the  necessity  in  confederated  sovereignties,  of  coer- 
cive power  in  the  Federal  Government,  continues :  "  But,  to  come 
nearer  home,  Mr.  President,  have  we  not  seen  and  felt  the  necessity  of 
such  a  coercive  power  ?  What  was  the  consequence  of  the  want  of  it 
during  the  late  war,  particularly  towards  the  close  ?  A  few  States  bore 
the  burden  of  the  war.  While  we,  and  one  or  two  more  of  the  States 
were  paying  eighty  or  a  hundred  dollars  per  man,  to  recruit  the  conti- 
nental army,  the  regiments  of  some  States  had  scarcely  men  enough  to 
wait  on  their  officers.  *  *  *  But  I  do  not  wish  to  continue  the 
painful  recital  ;  enough  has  been  said  to  show,  that  a  power  in  the 
general  Government  to  enforce  the  decrees  of  the  Union,  is  absolutely 
necessary.  The  constitution  before  us  is  a  complete  system  of  legisla- 
tive, judicial,  and  executive  power.  It  was  designed  to  supply  the  de- 
fects of  the  former  system  :  and  I  believe,  upon  a  full  discussion,  it  will 
be  found  calculated  to  answer  the  purposes  for  which  it  was  designed." 
(2.  Elliot's  Debates,  192-:].) 

In  the  convention  of  South  Carolina,  Mr.  Pinckney,  (a  delegate  in 
the  Federal  convention,)  upon  the  general  subject  of  the  nature  of  the 
power  proper  to  be  confided  to  the  general  Government,  said,  "He  re- 
peated, that,  the  necessity  of  having  a  government  which  should  operate 
upon  the  people,  and  not  upon  the  States,  was  conceived  to  be  indispen- 
sable by  every  delegation  present:"  (in  the  Federal  convention,)  "that 
however  they  may  have  differed  with  respect  to  the  quantum  of  power, 
no  objection  was  made  to  the  system  itself,"  (4.  Elliot's  Debates,  251.) 
And  in  the  same  argument,  reviewing  the  different  powers,  to  all  of 
which  the  foregoing  remark  is  applicable,  he  continues:  "As  to  the 
power  of  raising  troops,  it  was  unnecessary  to  remark  upon  it,  further 
than  to  say  that  this  is  a  power  the  government  at  present  possesses,  and 
exercises,  a  power  so  essential,  that  he  should  very  much  doubt  the  good 
sense  or  information  of  the  man,  who  should  deem   it  improper — it  is 


15 

guarded  by  a  declaration,  that  no  grants  for  the  ;  ball  be  Ionj 

than  two  year?  at  a  time."     (lb!..  255.) 

It.  is  obvious  that  Mr.  Pinckney  must  be  understood  as  saying,  that 
the  power  of  raising  armies  was  essential  to  the  government,  and  that  in 
the  exercise  of  it,  as  well  as  of  other  powers,  it  was  necessary  that  the 
government   aslwuld  operate   upon  the  \  pon  the 

States,"     Thi  id,  but  we  deem  tli 

sufficient  to  present  clearly,  the  reasoning  upon  which,  and  the 
to  attain  which  the  people  were  urged  to  adopt  the  Constitution.     Did 
i:  comport  with  limits  appropriate  to  this  :  might  fortify   < 

tionbylaigc  quotations  from  adverse  views  ime 

conventions,  by  reason  of  the  fact  thai  the  advarsc  arguments  and  coun- 
sels, however  able,  eloquent  and  earnest,  were  •:  of 
adoption.  To  lingwe  will  add  a  few  extracts  from  the  Feder- 
alist, a  publication  in  L788,  by  Madison,  Hamilton  and  Jay,  urging 
upon  the  whole  Fthe  I  nited  States  the  adoption  of  the  Federal 
Constitution.  In  the  1  ~> 1 1 1  No.,  pgs.  67-70,  Mr.  Hamilton  reiterates  the 
view  presented  by  him  in  the  New  York  convention,  and  in  No.  26,  p. 
116,  he  remarks :  "The  idea  of  restraining  the  legislative  authority  in 
tlic  means  for  providing  for  the  national  defence,  is  oi 
ments,  which  owe  their  origin  to  a  zeal  for  liberty,  more  ardent  than 
enlightened.  We  have  seen,  however,  that  it  has  not  had  thus  far  an 
extensive  prevalence  ;  that  even  in  this  country,  where  it  - 
appearance,  Pennsylvania  and  North  Carolina  ar  mly  two 
States  by  which  it  has  been  in  any  degree  patroniz  d  and  that 
all  the  others  have  refused  to  give  it  the 

Mr.  Madison,  commentii  same  defects  of  the 

reviews  the  construction   and   epitomizes  the  history  of  several  similar 
systems ;  the  Amphyct  -and  the 

'manic  Empire.     After  enumerating  th  I  in  the  G 

manic  Diet,  he  Baj  b  a  parade  of  C  I  9  in 

the  repi  I  head  of  this  confederacy,  the  ition 

would    be,  that    it  must    form  an  excepts 

which   belong-    to  its    bin;  further 

from   the    reality.       The    ft]  ll      principle     on    which 

that  the  Empire  is  a  gommun  pre- 

■ 

render  the  Empil 

members,  in  1  v\ith  unc 

fermentations  in  its  own  bow< 


TO 

apology  for  having  dwelt  so  long  on  the  contemplation  of  these  Federal 
precedents.  Experience  is  the  oracle  of  truth  ;  and  where  its  responses 
are  unequivocal,  they  ought  to  be  conclusive  and  sacred.  The  impor- 
tant truth,  which  it  unequivocally  pronounces  in  the  present  case,  is, 
that  a  sovereignty  over  sovereigns,  a  government  over  governments,  a 
legislation  for  communities,  as  contradistinguished  from  individuals,  as  it 
is  a  solecism  in  theory,  so  in  practice,  it  is  subversive  of  the  order,  and 
end-  of  civil  polity,  by  substituting  violence  in  the  place  of  law,  or  the 
destructive  coercion  of  the  sword,  in  place  of  the  mild  and  salutary  co- 
ercion of  the  magistracy."  (Fed.  No.  20,  p.  92.)  The  substance  of  the 
lesson  thus  inculcated  by  these  sages,  is,  that  in  the  exercise  of  the  pow- 
ers to  raise  revenue,  and  to  raise  armies,  for  the  protection  of  the  country, 
the  federal  arm  should  be  so  lengthened,  and  strengthened,  as  to  enable 
the  government  to  reach  individuals,  instead  of  registering  edicts,  to  be 
enforced  upon  them,  by  the  States,  if  in  their  sovereign  discretion 
they  should  choose  so  to  do. 

Since  then,  with  these  objections  urged  on  the  one  hand,  and  answer- 
ed on  the  other,  with  all  possible  clearness  and  force,  the  people  of  the 
several  States,  adopted  the  Constitution,  what  is  the  just  conclusion  as 
to  their  intention  regarding  the  clauses  under  consideration  ?  Clearly 
it  would  seem  to  transfer  the  entire  powers  to  raise  revenue  and  to  raise 
armies,  for  the  uses  of  the  general  government,  from  the  States  to  that 
government;  to  place  them  side  by  side  with  the  war-making  power. 
But  to  make  the  transfer  complete  it  was  necessary,  that  it  should  em- 
brace touching  revenue,  the  power  to  enforce  'payment,  and  touching 
armies,  that  of  compulsory  enrollment. 

Armies,  it  is  said,  may  be  raised  b}r  voluntary  enlistment ;  so  revenue 
may  be  collected  by  voluntary  payment.  Yet,  all  concede,  that  the 
intention  was  to  grant  the  power  of  enforcing  payment.  Then  why 
not,  'pari  passi/,  with  it,  that  of  compulsory  enrollment  ?  The  grants 
are  both  expressed  in  general,  comprehensive  terms  :  as  promotive  of 
national  defence,  they  are  mutually  dependent — inseparable  :  the  gov- 
ernment bereft  of  either  cannot  possibly  make  the  other  available.  Then, 
why  subject  them  to  different  rules  of  construction  ?  So  much  for 
intention,  in  the  adoption  of  the  Federal  Constitution. 

The  people  of  the  Confederate  States,  when  tliey  came  to  perform  a 
similar  act,  had  received  additional  historical  enlightenment.  They 
learned  from  the  history  of  the  intervening  period,  that  during  the  last 
war  with  England,  there  had  been  convened  a  Hartford  Convention, 
with  a  view  to  the  organised  opposition  of  several  States   to  a  war  in 


IT 

actual  progress — that  the  Governors  of  several  of  those  States  had 
boldly  denied  the  power  of  the  Federal  Government,  to  call  their  militia 
beyond  their  respective  boundaries.  They  were  thus  taught  that  re- 
fractory Governors,  and  recusant  Stales  were  to  say  the  least,  possibili- 
ties. They  might  readily  infer  that  States  which  could  not  be  r<  lied 
upon  for  militia  service,  were  scarcely  reliable  for  army  requisitions. 

It  thus  appears  that,  with  the  same  end  in  view,  guided  by  tin 
and  additional  historical  lights,  and  prompted  by  the  further  c  n- 
tion  that, in  the  very  hour  of  their  action,   the   cloud   of  terrible    war 
hung  portentously  over  them,   the   people  of  the   Confederate 
adopted,  quo  ad  these  powers,  the  same  Constitution.     Our  conclusion 
is,  that  the  power  of  raising    armies   by    compulsory    enrollment,    was 
necessary  to  the  attainment  of  the  end  :    that  it  was  seen  by  them  to  6c 
so  ;  that  they  intended  by  the  terms  used  to  grant  it  ;  and  consequently 
that  it  is  not  violative  of  the    -drit  of  the  Constitution. 

That  the  grant  of  this  power  in  the  plenitude  claimed  03  tli 
gress,  and  conceded  by  this  Court,  "is  incompatible  with  original,  una- 
bridged State  Sovereignty,  is  a  self-evident  truth,  for  it  is  a  very  high 
political  power.  But  we  are  precluded  this  test,  by  the  Act  of  the 
States,  partioning  between  themselves  and  the  Confederate  Government, 
the  powers,  which,  aggregated,  make  absolute  sovereignty.  The  true 
test,  is,  whether  it  be  the  exercise  of  a  delegated,  or  an  usurpation  of  a 
reserved  power.  We  hold  that  it  is  the  former,  and  therefore  compatible 
with  the  large  residuum  of  sovereignty  which  the  States  intended  to  re- 
tain. If  the  true  construction  of  the  constitution  be,  that,  in  del 
to  State  sovereignty,  the  Confederate  Government  must  depend  upon 
the  separate,  unconcerted  action  of  the  several  State-,  for  th  ■  exercise 
of  powers,  granted  to  it  in  general  comprehensive  term.-,  it  is  bul  the 
shadow  of  a  Government :  the  experiment  of  confederated  Republics 
must  inevitably  fail,  and  the  soouer  it  is  abandoned  the  better.  The 
alternative  then  remaining  to  the  advocates  of  Republican  Government, 
will  be  either  the  separate  nationality  of  the  States,  each,  facing  the 
great  powers  of  earth,  in  its  pitiable  imbecility  ;  or  the  obliteration  of 
State  lines,  and  the   formation    of  a    consolidated   Republic      I 

however,  that,  construing  th>'  Constitution  by  a  jnsl  and  intelli- 
gent discrimination,  unbia  1  either  hand,  the  existing 
happy  mean-  may  be  made  to  work  safely  and  beneficently. 

N  it'  it  In'  true  that  th  of  this  power  as  w 

struc  it  "would  be  subversive  ofii 
made  ■•>".  '  then  indeed  is  it  violative  of  the   spirit  of  the  Constitution. 


18 

That  such  is  its  character,  say  its  opponents,  is  apparent  from  the  fol- 
lowing view.  "If  the  Congress  have  the  power  to  enroll,  and  force  into 
the  army,  the  citizens  of  the  States,  they  may  enroll  their  Governors, 
Legislators,  Judges  and  Ministerial  officers,  and  thus  annihilate  civil 
"overmncnt  within  their  borders."     It   seems   not  to  have  occurred  to 

o 

the  objectors,  who,  conceding  that  the  power,  as  an  incident  to  that  of 
raising  armies,  must  ex  necessitate  rei,  exist  somewhere,  claim  it  for 
the  States,  that  they  might  enroll  the  corresponding  officials  of  the 
Confederate  Government,  and  thus  in  the  midst  of  war,  annihilate  the 
agency  charged  with  its  prosecution.  Should  it  be  said  that  this  sug- 
gestion is  the  offspring  either  of  an  excited  imagination,  or  of  a  distrust- 
ful hvpercriticism,  we  must  allow  the  justice  of  the  impeachment.  But, 
then,  how  shall  the  first  escape  the  like  condemnation,  seeing  that  the 
two  exhibit  plain  traits  of  a  common  lineage  ? 

The  earnestness  with  which  this  objection  has  been  pressed,  and  the 
countenance  given  it,  in  high  quarters,  must  be  our  apology  for  bestow- 
ing upon  it  graver  and  more  extended  notice. 

We  have  said  that  the  "power  to  raise  armies"  is  unlimited  as  to  the 
use  of  means  :  we  have  not  said,  it  is  unlimited  as  to  the  subjects  upon 
whom  it  may  operate.  There  are  certain  first  principles  which  under, 
lie  all  governments,  and  all  organised  society  :  the  violation  of  which 
the  framers  of  Governments  are  not  supposed  to  intend,  and  the  at- 
tempted violation  of  which  will  always  be  arrested. 

Says  Burlamaqui,  the  great  expounder  of  Natural  and  Civil  Law  : 
"  We  must  not  confound  an  absolute  power,  with  an  arbitrary,  despotic 
and  unlimited  authority.  For,  from  what  we  have  now  said  concerning 
the  origin,  and  nature  of  absolute  sovereignty,  it  manifestly  follows,  that 
it  is  limited,  from  its  very  nature,  by  the  intention  of  those  who  con- 
ferred it."  The  Government  of  the  Confederate  States  was  formed  by 
the  sovereign  people  of  the  respective  States,  Cor  specific,  well  defined 
purposes ;  but  they  retained  for  other  purposes,  equally  well  defined, 
their  several  pre-existing  Governments.  To  enable  it  to  accomplish  one 
of  the  purposes  for  which  it  was  instituted,  we  say,  they  granted  it  un- 
limited power  in  the  use  of  means,  to  raise  armies,  from  their  popula- 
tions. But  if  ever  that  Government  shall  apply  those  means  to  the 
enrollment  of  the  officers,  and  agents,  by  whom  the  State  Governments 
are  operated,  and  without  whose  agency  their  machinery  must  stop,  it 
will  manifestly  transcend  its  limit,  by  violating  "the  intention  of  those 
who  conferred  the  power."  We  quote  also  to  the  same  effect,  Prof. 
Rutherforth.     In  his  institutes  of  Natural   Law,   after  explaining  how 


10 

despotic  Governments  are  produced,  he  proceeds  ;  "In  all  the 
the  same  body,  which  prescribes  what  is  to  he  done  having  the  public 
force  in  its  hands  to  compel  the  execution  of  it,  is  suited  to  no  constitu- 
tional checks  or  controls ;  it  is  ]  ossessed  of  the  whole  power  of  Govern- 
ment, and  consequently  is  as  absolute  as  it  is  possible  for  civil  power  to 
be.  T  say,  as  it  is  possible  for  civil  power  to  lie  ;  because  civil  power 
when  it  is  vested  any  where,  unless  in  the  collective  body  of  the  Society, 
however  absolute  it  may  be  in  some  respects,  is  not  so  in  all.  We  c  J 
it  absolute,  where  the  Constitution  has  provided  no  constant  and  uniform 
control  of  it;  that  is,  we  call  it  absolute,  when  it  is  so  in  respect  "I'  any 
constitutional  restraint.  But  still,  as  it  is  only  civil  power,  it  will  be 
limited  by  its  own  nature  :  for  as  this  is  a  power  formed  for  certain 
purposes,  it  cannot  in  its  own  nature  be  so  far  absolute,  as  to  be  free 
cither  to  promote  those  purposes,  or  to  pi-event  them."  (2  Ruth:  '.'!•. 
397.) 

The  preamble  of  our  Constitution  recites,  that  'the  people  of  the 
('onfedcratc  States,  eaoh  State  acting  in  its  sovereign  and  independent 
character,  in  order  to  form  a  permanent  federal  government,  establish 
justice,  insure  domestic  tranquility,  and  secure  the  blessings  of  liberty 
*    *     *     do  ordain  and  establish  this  Constitution,"  &c. 

Now  is  it  not  apparent  that  whenever  the  Government  thus  instituted, 
shall  use  a  power  granted  to  it.  so  as  to  annihilate,  suspend  or  obstruct 
the  State  Governments,  eharged  with  the  administration  of  interna], 
domestic  polity — with  "establishing  justice,"  between  man  and  man,  it 
will  "prevent  the  purposes  for  which  it  was  established,"  and 
its  limits  ' 

Sir  Wm.  Blackstone,  affirms  that  the  law  of  nature  is  superior  to  civil 
power,  and  that  "no  human  laws  arc  of  any  validity  if  contrary  to  it." 
(1st  Blac's  Com.41.) 

Vatel  say-.  "  The  law  of  Nations  limits  the  civil  power."  (Vatel's  L. 
X.  (preliminaries)  Sec.  '•'.  p.  51.) 

We  learn  from  these  Commentators,  (of  acknowledged  authority) 
that  civil  power,  even  in  d  in  and 

trained  within  limits,  by  great  first  principles,  or  by  limitations  inh 
in  each  particular  system.     Were   there   do  more   certain   or  definite 
irity,  in  our  case,  we  might  confide  that  a  Government  adminisb  - 

by  agents,  eh 

and  therefore  responsible  to  them,  would  respect  tic  - 
oised  limit-  of  even  irresponsible  power. 

But  there  are  in  the  Constitution  itself,    express   limitation  . 


20 

this  point.  The  .sixth  clause  of  the  Gth  article,  is  in  these  words.  "  The 
poivers  not  delegated  to  the  Confederate  States,  by  the  Constitution, 
nor  prohibited  by  it,  to  the  States,  are  reserved  to  the  States,  respec- 
tively, or  to  the  people  thereof"  As  a  general  grant  of  power  includes 
the  means  necessary  to  its  exercise,  so  a  general  reservation  of  power, 
includes  its  necessary  instrumentalities.  As  no  interference  of  State 
authority,  with  the  exercise  of  granted  powers,  should  be  permitted;  so 
no  suspension,  or  obstruction,  by  Confederate  authorities,  of  reserved 
p  >wcrs,  should  be  permitted.  Without  descending  to  particulars,  we 
remark  that,  that  whole  class  of  powers,  not  delegated  to  the  Confederate 
States,  (and  it  is  a  large  one)  requires  governmental  functions,  which 
were  previously  in  full  exercise.  Any  interference  with  these,  would 
violate  this  clause. 

Again,  the  fourth  clause,  third  section,  fourth  article,  reads  thus  : 
"  The  Confederate  States  shall  guaranty  to  every  State  that  now 
is,  or  hereafter  may  become,  a  member  of  this  Confederacy,  a  Re- 
publican  form  of  Government  "  SfC.  Can  a  Eepublican  form  of  Gov- 
ernment be  maintained,  without  the  necessary  instrumentalities  ? 

If  by  any  Act  of  the  Confederate  Government,  such  instrumentalities, 
whilst  in  the  exercise  of  their  proper  functions,  within  any  State,  were 
forcibly  withdrawn,  would  not  that  Act  violate  the  constitutional  guar- 
anty ? 

In  the  populations  of  the  States,  there  is  ample  scope  and  verge  for 
the  exercise  of  the  power  in  question,  without  invading  the  departments 
of  the  State  Governments.  So  far,  the  Congress  have  recognised  the 
limit  here  pointed  out,  by  an  Act  of  exemption,  directory  of  their  enroll- 
ing officers. 

We  have  said  that  they  may  be  safely  trusted  for  its  observance,  and 
we  now  add,  that  in  our  opinion,  if  ever  regardless  of  it,  the  judicial 
interposition,  sought  and  refused  in  this  case,  might  properly  be  invoked. 

< >ur  conclusion,  then  is,  that  as  to  the  use  of  means,  the  power  is 
unlimited,  but  clearly  limited,  so  as  to  exempt  the  civil  officers  of  the 
several  States. 

Such  is  the  construction  we  give  to  the  Constitution,  and  wc  now  cite, 
in  addition  to  those  previously  cited  on  particular  points,  high  authorities, 
which  seem  to  us,  to  cover  the  whole  ground. 

Judge  Story,  who  by  his  judicial  opinions,  and  by  his  voluminous 
Commentaries  on  the  Law,  has  established  a  wide  and  exalted  reputa- 
tion, as  a  jurist ;    and   whose   dear  legal  vision  was  never  jaundiced  by 


21 

political  aspirations,  or  party  associations,  Las  treated  this  subject  fully, 
both  in  its  historical  and  political  relations. 

We  commend  to  the  impartial  inquirer,  his  entire  commentary  on  the 
clause  in  question,  from  section  1 17-1  to  11^7,  inclusive — commencing 
mi  page  64  of  the  3d  volume  of  liis  Commentaries  on  the  Constitution 

r.  s. 

Our  quotations  must  necessarily  be  limited.  In  see.  1174,  p\  64,  vol 
3,  he  remarks :  "The  power  to  raise  armies  is  an  indispensable  incident 
to  the  power  to  declare  war ;  and  the  latter  would  be  literally  brutum 
fulmen  without  the  former,  a  means  of  mischief  without  a  power  of 
defense.  Under  the  Confederation  Congress  possessed  no  power  what- 
ever to  raise  armies  :  but  only  'to  agree  upon  the  number  of  land  forces, 
and  to  make  requisitions  from  each  State  for  its  quota."  "  kv.  It  will 
bo  observed  that  the  learned  Commentator  considers  the  grant  under  the 
old  Confederation,  "no power  wJiatever  to  raise  armies." 

But  if  the  present  Constitution  does  not  give  the  power  to  coerce 
individuals,  it  will  be  exceedingly  difficult  to  appreciate  the  gain  of 
power.  After  giving  a  summary  of  the  arguments  adduced  for 
and  against  the  power,  whilst  the  Constitution  was  before  the  peo- 
ple of  the  States  for  their  adoption  or  rejection  ;  he  adds,  (section 
1 178,  inclusive.)  "Indeed,  in  regard  to  times  of  wat ,  it  seems 
utterly  preposterous  to  impose  any  limitations  i/]X)?i  the  power  . 
since  it  is  obvious  that  emergencies  may  arise,  which  would  require  the 
most  various  and  independent  exercise  of  it.  The  country  would 
otherwise  be  in  danger  of  losing  both  its  liberty  and  \t<  sovereignty, 
from  its  dread  of  investing  the  public  councils  with  the  power  of  defend- 
ing  it.  It  would  be  more  willing  to  submit  to  foreign  conquest  than  to 
domestic  rule.  But  in  times  of  peace,  the  power  may,  be  at  last  equally 
important,  though  not  so  often  required  to  be  put  in  full  exei 

In  181  1,  Mr.  Monroe, then  Secretary  of  the   War  Department,  pre- 
sented to  the  Congress  a  plan    for  the   increase  of  the   army    involving 
compulsory  enrollment.     For  this  plan,  see  7  Niles  AVccklv    B 
294. 

Whilst  hi-  plan  was  under  consideration,  Mr.  Monroe  addn  ssed  to  the 
Chairman  of  the  Committee  on  Military  affairs,  a  letter,  from  which  we 
extract,  as  foil- 

"  The  idea  that  the  United  Si  lai    army  in  any 

other  mode  than  by  accepting  the  voluntary  i  f  individu 

pugnant  to  the  uniform 
,  and  equally  so  to  the  first  principles  and  leading  objecta  of  the 


22 

federal  compact.  An  unqualified  grant  of  power  gives  the  means  ne- 
cessary to  carry  it  into  effect.  This  is  an  universal  maxim  which  admits 
of  no  exception.  Equally  true  is  it  that  the  conservation  of  the  State 
is  a  duty  paramount  to  all  others.  The  commonwealth  has  a  right  to 
the  service  of  all  its  citizens,  or,  rather,  the  citizens  composing  the  com- 
monwealth have  a  right  collectively  and  individually  to  the  service  of 
each  other,  to  repel  any  danger  which  may  be  menaced.  The  manner 
in  which  the  service  is  to  be  apportioned  among  the  citizens,  and  render- 
ed by  them,  are  objects  of  legislation.  All  that  is  to  be  dreaded  in  such 
case,  is  the  abuse  of  power,  and  happily  our  Constitution  has  provided 
ample  security  against  that  evil. 

"The  limited  power  which  the  United  States  have  in  organizing  the 
militia  may  be  urged  as  an  argument  against  their  right  to  raise  regular 
troops  in  the  mode  proposed.  If  any  argument  could  be  drawn  from 
that  circumstance,  I  should  suppose  that  it  would  be  in  favor  of  an  op- 
posite conclusion.  The  power  of  the  United  States  over  the  militia  has 
been  limited,  and  that  for  raising  regular  armies  granted  without  limita- 
tion. There  was,  doubtless,  some  object  in  this  arrangement.  The  fair 
infereuce  seems  to  be,  that  it  was  made  on  great  consideration  ;  that  th 
limitation  in  the  first  instance  was  intentional,  the  consequence  of  the 
unqualified  grant  of  the  second.*'     (7.  Niles  TV.  R.  138-9.) 

George  M.  Troup,  of  Georgia,  a  man  "  without  fear  and  without  re- 
proach," a  profound  Statesman,  an  early,  consistent  and  unrelenting 
advocate  of  State-rights  ;  whom  the  people  of  Georgia,  at  least,  always 
delighted  to  honor,  and  felt  safe  in  following,  was  then  Chairman  of  that 
Committee.  As  Chairman  he  reported  a  bill,  for  the  increase  of  the 
army,  based  upon  Mr.  Monroe's  recommendation,  and  supported  by  an 
argument  from  which  we  extract  the  following  : 

"  Rut  is  there  no  mode  to  which  you  can  resort  for  filling  the  ranks, 
but  voluntary  enlistment  ?  I  would  be  extremely  sorry  if  we  could  not. 
I  have  always  thought  this  Government,  when  administered  in  the 
true  spirit  of  the  Constitution,  the  strongest  Government  in  the  world, 
even  for  the  purposes  of  war  ;  but  if  the  doctrine  set  up  of  late  be  true, 
this  is  the  weakest  and  most  contemptible  Government  on  earth  ;  it  is 
neither  fit  for  war  or  peace,  it  has  failed  of  all  the  ends  for  which  Gov- 
ernments are  established ;  it  cannot  be  true  that  this  Government, 
charged  with  the  general  defence,  authorized  to  declare  war  and  to 
■raise  armies,  can  have  but  one  mode  of  raising  armies,  whilst  every 
other  Government  that  has  ever  existed,  has  had  an  absolute  p>oiccr 
over  the  'population  of  the  country  for  this  purpose,  and  has  actually 


23 

exercised  it  ;  but  this  question  is  not  properly  before  the  Souse,  and  I 
will  not  go  into  an  argument  to  shew  thai  you  can,  like  other  Govern, 
raente,  resort  to  other  modes  of  raising  armies  than  that  of  voluntary 
enlistment  ;  that  you  can  resort  to  classification  and  draft,  to  classification 
and  penalty,  or  any  other  mode  which  a  sound  discretion  may,  in  a  par* 
ticular  state  of  the  country,  dictate  and  justify.  All  I  intend  to  say  at 
present  is,  that  you  have  an  absolute  power  over  the  population  of /he 
country  for  this  purpose,  and  that  in  the  present  stale  of  the  country, 
it  is  wiser  to  resort  to  classification  and  draft,  than  to  resort  to  the  bill 
from  the  Senate  :  the  one  will  give  the  men  certainly  and  expedi- 
tiously^ the  other  will  not"     (7.  Niles  Weekly  Register,  79.) 

Thus  sustained,  by  cotemporary,  and  subsequent  expositions  of  the 
Constitution,  we  rest  upon  our  conclusions,  undisturbed  by  any  lingering 
doubt.  And  it  is  a  high  gratification,  that  in  the  crisis  of  our  late  a-  a 
nation  ;  when  flagitious  war  is  desolating  our  country,  we  are  enabled 
in  perfect  consistency  with  the  obligations  of  official  duty,  to  "  stay-up 
the  hands"  of  our  Confederate  authorities,  in  the  wise  and  timelj 
cise  o\'  a  power  expressly  granted. 

We.  therefore,  unanimously  adjudge,    that  the  judgment  of  the  (V 
below  he  affirmed. 


t. 

infers 

limitation  i 

unqualified  gr;w  .  .) 

George  M.  Trouj  ...       ».  .r  and  without  re- 

proach," a  profound  Steu.  ,n,  an  early,  con.  Jnt  and  unrelenting 
advocate  of  State-rights  ;  'whom  the  people  of  Georgia,  at  least,  always 
delighted  to  honor,  and  felt  safe  in  following,  was  then  Chairman  of  that 
Committee.  As  Chairman  he  reported  a  bill,  for  the  increase  of  the 
army,  based  upon  Mr.  Monroe's  recommendation,  and  supported  by  an 
argument  from  which  we  extract  the  following  : 

"  But  is  there  no  mode  to  which  you  can  resort  for  filling  the  ranks, 
but  voluntary  enlistment  ?  I  would  be  extremely  sorry  if  we  could  not. 
I  have  always  thought  this  Government,  when  (id ministered  in  the 
true  spirit  of  the  Constitution,  the  strongest  Government  in  the  world, 
even  for  the  purposes  of  war  ;  but  if  the  doctrine  set  up  of  late  be  true, 
this  is  the  weakest  and  most  contemptible  Government  on  earth  ;  it  is 
neither  fit  for  war  or  peace,  it  has  failed  of  all  the  ends  for  which  Gov- 
ernments arc  established  ;  it  cannot  be  true  that  this  Government, 
charged  with  the  general  defence,  authorized  to  declare  'tear  and  to 
raise  armies,  can  have  but  one  mode  of  raising  armies,  whilst  every 
other  Government  that  has  ever  existed,  lias  had  an  absolute  poiccr 
over  the  population  of  ihc  country  for  this  purpose,  and  has  actually 


